US v. Rahimi - Civil protection orders don't allow federal prosecution for possession of a firearm

[zukiphile]

https://www.documentcloud.org/docume...un-restriction

A man is subject to a CPO after assaulting his girlfriend and subsequently found with a firearm and prosecuted for the same part of the federal code that has you denying 11 (h) on your yellow, that you are the subject of a protective order.

Court finds that the federal code on this point violates the 2d Am. "People" whose rights are protected includes those subject to a protective order, but not prohibited by criminal conviction. The decision disfavored a process by which someone's status under the federal law shifts without any actual adjudication.

The case doesn't reach prosecution under state laws for violation of CPOs, but a lot of state procedures purport to ban possession of arms in their orders even where that isn't an issue at hearing and there are no findings of fact on that subject.


It's not too long a read.

[44 AMP]

The problem with protection orders (restraining orders) is that, while most often "good" things, they are not 100% good things, as anyone who pays the fees and tells a believable sob story can get one even when the only verifiable indication of harm or threat is from the person seeking the restraining order.

Restricting ANY of our rights, absent full due process and CONVICTION is wrong, as I see it. And that is what restraining orders, and red flag laws allow.

Say you're innocent? That you didn't do/aren't what someone else says? Come back in a year, and get your day in court! Meantime, no guns for you!

I don't see that as even remotely fair or even ethical. One should not be considered guilty and be punished based solely on a complaint.

Personally, I've always felt that if a person is so dangerous they need to be barred from possession of firearms, they are too dangerous to be roaming around loose. Never understood the sense in restricting/removing firearms some someone and then leaving them "on the street" so that they could accquire other means to do harm.
But, that's just me...

[Tom Servo]

This is pretty much a summation of how the Bruen test dismantled the doctrine of "intermediate" scrutiny:

Doubtless, 18 U.S.C. §922(g)(8) embodies salutary policy goals meant to protect vulnerable people in our society. Weighing those policy goals’ merits through the sort of means-end scrutiny our prior precedent indulged, we previously concluded that the societal benefits of §922(g)(8) outweighed its burden on Rahimi’s Second Amendment rights. But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that §922(g)(8)’s ban on possession of firearms is an “outlier[] that our ancestors would never have accepted.” Id.Therefore, the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated.

I don't think anyone, including me, wants a wife-beater or a stalker to have access to firearms. But the Lautenberg amendment that established all this was very poorly written, overbroad, and had some due process concerns. That was apparent from the moment it passed. In fact, the provisions on misdemeanor domestic violence caused some real issues in law enforcement and the military. In some states, a verbal threat made two decades ago is a lifetime bar to firearms ownership.

There's something of a parallel to Citizens United. If they wanted to fix a problem, Congress should have considered and written the law in question better.

So I'm sure the cheap and easy take will be "rabid NRA cronies endorse domestic violence." That's not accurate. A bad law is a bad law. Now Congress has a chance to draft something more prudent.

[zukiphile]

Originally Posted by Tom Servo

I don't think anyone, including me, wants a wife-beater or a stalker to have access to firearms.
***
There's something of a parallel to Citizens United. If they wanted to fix a problem, Congress should have considered and written the law in question better.

Citizens United is a good comparison; Congress clearly wanted to do something and address some problem. Unfortunately, the problem they wanted to address was the 1st Am. protecting speech even within 60 days of an election and people being more or less free to contribute to candidates they support.

I'd like a wife-beater to stop beating his wife, but I'm not at all certain that prohibiting him from voting, carrying a firearm, or speaking freely about his beliefs would have much to do with his wife's problem. It's at least as likely that drug and DV disqualifications are a combination of a wish for greater government power (as opposed to exercise of an individual right) and someone telling his voters that he'd done something about a problem.

[44 AMP]

I never understood the reasoning that allows a certain physical act to be punished more harshly if performed on your domestic partner than on a total stranger. That doesn't seem like "equal treatment under the law" to me, not even remotely.

Also always felt that the argument that domestic partners are "trapped" and "can't escape" was a crock. Other than those rare cases where someone is physically restrained (chained up, kept in a locked cell) you can always escape.

Doesn't mean its easy, but its always possible. People who don't escape are making a choice. A poor one, I think, but its their choice.

[zukiphile]

Originally Posted by 44 AMP

Also always felt that the argument that domestic partners are "trapped" and "can't escape" was a crock.

Violence in the home and how society and the law view it can be complex in part because the modern, middle class idea is that there is no place for it whatsoever. One of the very few criminal matters I handled was about a man who had spanked the children in his house. I was amazed at the prosecutorial resources directed toward the man.

I explained to the court that we shouldn't view it through the lens of our own experience. I wasn't spanked and I didn't spank my children, but that doesn't mean that spanking is child abuse. I thought I needed to explain that to the court because the issue shouldn't be whether a criminal defendant was who we want to be, or wanted to live around; it was whether he had committed a crime.

About DV, I had a court therapist in another matter note to me that when he started long ago there was a co-dependent diagnosis for couples in which the woman required some violence from a man in order to be able to respect and love him. As a political matter, he was no longer allowed to make that diagnosis, but it pointed to a truth about couples that might not seem happy to you or me, but have something they both want.

I had an oncologist client who had cured his own wife's cancer. He'd had too much to drink one evening and pushed his way past her to get away from being pestered for drinking. She landed on her kiester, then called the police. He became the subject of a restraining order.

DV is a hard issue in part because each of us is likely repulsed at a visceral level at the idea of striking a woman. To view the elements of a once common working class culture in which a woman could be hit and children were routinely spanked is difficult for us to distinguish from deadly or injurious abuse because we abhor both.

That's a very long way of explaining why our view of violence in the home may lack subtlety. Against that backdrop, depriving someone subject to a DV order from obtaining a firearm looks like an easy call for us if we already aren't taking the 2d Am. right seriously.

[Aguila Blanca]

I'm old enough that spanking children was not just accepted but recommended when I was growing up. It was also effective; anything I ever got spanked for doing, I didn't do it a second time.

I never regarded it as "abuse." I recognized it as "punishment" -- for my having done something wrong. It taught us that actions have consequences. Of course, I never bought my mother's protestations that, "This is going to hurt me more than it hurts you," but that's beside the point.

[zukiphile]

Originally Posted by Aguila Blanca

I never regarded it as "abuse." I recognized it as "punishment" -- for my having done something wrong.

When I meet an adult who was spanked (including rod or belt) and credits that with endowing him with a sense of responsibility and morality, that it was administered as a punishment for an identified transgression always seems to be part of the formula.

That's a different in quality from an emotionally incontinent adult who hits children out of general frustration. I'm tempted to opine that this difference has more to do with the difference between abuse and punishment than the force or frequency of the strike. Some of the saddest abuse I've seen involved no hitting at all.

We'd like every parent and spouse to be loving, attentive, engaged and smart, but it seems as if law and government are only the remedy in the worst circumstances.

[44 AMP]

but it seems as if law and government are only the remedy in the worst circumstances.

Possibly, provided that law and govt recognize (and actually implement) something other than the tourniquet around the neck as a cure for a nosebleed...

something they seem rarely capable of doing...it seems

[5whiskey]

Violence in the home and how society and the law view it can be complex in part because the modern, middle class idea is that there is no place for it whatsoever. One of the very few criminal matters I handled was about a man who had spanked the children in his house. I was amazed at the prosecutorial resources directed toward the man.

I explained to the court that we shouldn't view it through the lens of our own experience. I wasn't spanked and I didn't spank my children, but that doesn't mean that spanking is child abuse. I thought I needed to explain that to the court because the issue shouldn't be whether a criminal defendant was who we want to be, or wanted to live around; it was whether he had committed a crime.

About DV, I had a court therapist in another matter note to me that when he started long ago there was a co-dependent diagnosis for couples in which the woman required some violence from a man in order to be able to respect and love him. As a political matter, he was no longer allowed to make that diagnosis, but it pointed to a truth about couples that might not seem happy to you or me, but have something they both want.

I had an oncologist client who had cured his own wife's cancer. He'd had too much to drink one evening and pushed his way past her to get away from being pestered for drinking. She landed on her kiester, then called the police. He became the subject of a restraining order.

DV is a hard issue in part because each of us is likely repulsed at a visceral level at the idea of striking a woman. To view the elements of a once common working class culture in which a woman could be hit and children were routinely spanked is difficult for us to distinguish from deadly or injurious abuse because we abhor both.

That's a very long way of explaining why our view of violence in the home may lack subtlety. Against that backdrop, depriving someone subject to a DV order from obtaining a firearm looks like an easy call for us if we already aren't taking the 2d Am. right seriously.

Very well reasoned and written. I abhor men (or women) who physically abuse their spouse. But DV IS taken too literally sometimes. Your oncologist client is a good example. In his particular example, it doesn't sound like he had the intent or mens rea to actually committ an assault. That's why it is important for the accused to seek effective counsel and fight these abuses of assault charges and restraining orders. I've seen it all too often, as I'm sure you have as well. But way top many guys and gals go to a civil hearing for a restraining or protection order without an attorney. Their success rate is usually less than optimal without competent counsel.

This is always a touchy subject. I've personally witnessed domestic murder suicides. It is tragic. But I've witnessed many abuses in criminal and civil domestic violence cases.